“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise...”
“(3) A person aggrieved by a relevant document may make an application to the High Court on the ground that— (a) the document is not within the appropriate power; (b) a procedural requirement has not been complied with. (4) But the application must be made not later than the end of the period of six weeks starting with the relevant date. (5)..... (6) Subsection (7) applies if the High Court is satisfied— (a) that a relevant document is to any extent outside the appropriate power; (b) that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement. (7) The High Court may— (a) quash the relevant document; (b) remit the relevant document to a person or body with a function relating to its preparation, publication, adoption or approval. (7A) If the High Court remits the relevant document under subsection (7)(b) it may give directions as to the action to be taken in relation to the document. (7B) Directions under subsection (7A) may in particular— (a) require the relevant document to be treated (generally or for specified purposes)as not having been approved or adopted; (b) require specified steps in the process that has resulted in the approval or adoption of the relevant document to be treated (generally or for specified purposes) as having been taken or as not having been taken; (c) require action to be taken by a person or body with a function relating to the preparation, publication, adoption or approval of the document (whether or not the person or body to which the document is remitted); (d) require action to be taken by one person or body to depend on what action has been taken by another person or body. (7C) The High Court’s powers under subsections (7) and (7A) are exercisable in relation to the relevant document— (a) wholly or in part; (b) generally or as it affects the property of the applicant.” (a) the document is not within the appropriate power; (b) a procedural requirement has not been complied with. (a) that a relevant document is to any extent outside the appropriate power; (b) that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement. (a) quash the relevant document; (b) remit the relevant document to a person or body with a function relating to its preparation, publication, adoption or approval. (a) require the relevant document to be treated (generally or for specified purposes)as not having been approved or adopted; (b) require specified steps in the process that has resulted in the approval or adoption of the relevant document to be treated (generally or for specified purposes) as having been taken or as not having been taken; (c) require action to be taken by a person or body with a function relating to the preparation, publication, adoption or approval of the document (whether or not the person or body to which the document is remitted); (d) require action to be taken by one person or body to depend on what action has been taken by another person or body. (a) wholly or in part; (b) generally or as it affects the property of the applicant.”
“The purpose of an independent examination is to determine in respect of the development plan document- (a) whether it satisfies the requirements of sections 19 [national policies and advice, and Regional Spatial Strategy] and 24(1) [Regional Spatial Strategy], regulations under section 17(7) and any regulations under section 36 relating to the preparation of development plan documents; (b) whether it is sound.”
“In Local Development Documents, Local Planning Authorities should: – Set an overall (ie plan-wide) target for the amount of affordable housing to be provided. The target should reflect the new definition of affordable housing in this PPS. It should also reflect an assessment of the likely economic viability of land for housing within the area, taking account of risks to delivery and drawing on informed assessments of the likely levels of finance available for affordable housing, including public subsidy and the level of developer contribution that can reasonably be secured. Local Planning Authorities should aim to ensure that provision of affordable housing meets the needs of both current and future occupiers, taking into account information from the Strategic Housing Market Assessment. – Set separate targets for social-rented and intermediate affordable housing where appropriate. A sufficient supply of intermediate affordable housing can help address the needs of key workers and those seeking to gain a first step on the housing ladder, reduce the call on social-rented housing, free up existing social-rented homes, provide wider choice for households and ensure that sites have a mix of tenures. – Specify the size and type of affordable housing that, in their judgement, is likely to be needed in particular locations and, where appropriate, on specific sites. This will include considering the findings of the Strategic Housing Market Assessment and any specific requirements, such as the provision of amenity and play space for family housing, and, where relevant, the need to integrate the affordable housing into the existing immediate neighbourhood and wider surrounding area. – Set out the range of circumstances in which affordable housing will be required. The national indicative minimum site size threshold is 15 dwellings. However, Local Planning Authorities can set lower minimum thresholds where viable and practicable, including in rural areas. This could include setting different proportions of affordable housing to be sought for a series of site-size thresholds over the plan area. Local Planning Authorities will need to undertake an informed assessment of the economic viability of any thresholds and proportions of affordable housing proposed, including their likely impact upon overall levels of housing delivery and creating mixed communities. In particular, as the new definition of affordable housing excludes low cost market housing, in deciding proportions of affordable housing to be sought in different circumstances, Local Planning Authorities should take account of the need to deliver low cost market housing as part of the overall housing mix. – Set out the approach to seeking developer contributions to facilitate the provision of affordable housing. In seeking developer contributions, the presumption is that affordable housing will be provided on the application site so that it contributes towards creating a mix of housing. However, where it can be robustly justified, off-site provision or a financial contribution in lieu of on-site provision (of broadly equivalent value) may be accepted as long as the agreed approach contributes to the creation of mixed communities in the local authority area.”
“Justification of Core Strategies 4.36 Core strategies must be justifiable: they must be: • founded on a robust and credible evidence base; and • the most appropriate strategy when considered against the reasonable alternatives. Evidence base 4.37 Core strategies have major effects. Social and economic impacts may include altering property values by a considerable amount; or helping access to housing, jobs, accessible local services and open space for many people, especially people with limited resources. There may be impacts on environmental or cultural assets: the core strategy may affect how much the area contributes to mitigating and reducing climate change. It is therefore essential that core strategies are based on thorough evidence. The evidence base should contain two elements: Participation: evidence of the views of the local community and others who have a stake in the future of the area. Research/ fact finding: evidence that the choices made by the plan are backed up by the background facts. Evidence gathered should be proportionate to the job being undertaken by the plan, relevant to the place in question and as up-to-date as practical having regard to what may have changed since the evidence was collected. Alternatives 4.38 The ability to demonstrate that the plan is the most appropriate when considered against reasonable alternatives delivers confidence in the strategy. It requires the local planning authority to seek out and evaluate reasonable alternatives promoted by themselves and others to ensure that they bring forward those alternatives which they consider the LPA should evaluate as part of the plan-making process. There is no point in inventing alternatives if they are not realistic. Being able to demonstrate that the plan is the most appropriate having gone through an objective process of assessing alternatives will pay dividends in terms of an easier passage for the plan through the examination process. It will assist in the process of evaluating the claims of those who wish to oppose the strategy..... Effectiveness 4.44 Core strategies must be effective: this means they must be: • deliverable; • flexible; and • able to be monitored. Deliverability 4.45 Core Strategies should show how the vision, objectives and strategy for the area will be delivered and by whom, and when. This includes making it clear how infrastructure which is needed to support the strategy will be provided and ensuring that what is in the plan is consistent with other relevant plans and strategies relating to adjoining areas. This evidence must be strong enough to stand up to independent scrutiny. Therefore it should: • be based on sound infrastructure delivery planning (see para 4.8 above); • include ensuring that there are not regulatory or national policy barriers to the delivery of the strategy, such as threats to protected wildlife sites and landscapes or sites of historic or cultural importance; • include ensuring that partners who are essential to the delivery of the plan such as landowners and developers are signed up to it. LPAs should be able to state clearly who is intended to implement different elements of the strategy and when this will happen; (These issues are handled through early involvement of key stakeholders in the preparation of options for the plan.) and • be coherent with the core strategies prepared by neighbouring authorities, where cross boundary issues are relevant. Flexibility 4.46 A strategy is unlikely to be effective if it cannot deal with changing circumstances. Core strategies should look over a long time frame – 15 years usually but more if necessary. In the arena of the built and natural environment many issues may change over this time. Plans should be able to show how they will handle contingencies: it may not always be possible to have maximum certainty about the deliverability of the strategy. In these cases the core strategy should show what alternative strategies have been prepared to handle this uncertainty and what would trigger their use. Authorities should not necessarily rely on a review of the plan as a means of handling uncertainty.”
“All proposals for additional housing, including those for a mix of uses, above identified size thresholds must make provision for sufficient affordable housing to meet identified needs. At least 30% of new dwellings on developments across the district which meet the thresholds should be dwellings which can be defined as affordable, with a split of approximately 80% social rented and 20% intermediate tenure...”
“11.2 Is the recently produced SHMA robust and credible and does it have the support of stakeholders?... 11.4 What evidence is there to support the 30% affordable housing provision threshold and the tenure split thresholds contained in the Policy CS6? Are these RSS and PPS 3 compliant? If not what is the local justification for deviation?... 11.5 What is the evidence to support and justify those thresholds of the Policy? How were they derived and have they been tested for viability? 11.6 Should the policy also contain a trigger site size threshold to enable implementation? If so, what should this be? How would it be justified? 11.7 Is there a need for different thresholds across the district rather than the application of a blanket requirement? 11.8 Should the Policy state the overall/annual requirement/ target for affordable homes? 11.9 To what extent will the thresholds of the Policy address the housing need? What is the evidence to indicate that it will be successful and achievable? 11.10 Should the policy be more flexible to take into account site by site viability considerations?...”
“The results of the economic viability appraisal at the baseline date indicates that in the current market, delivery of housing schemes generally are [sic] unviable and until such time that the property market returns to more typical levels of transactional activity, the delivery of any housing scheme with or without affordable housing is very unlikely...The documents set out various other scenarios by varying factors, including construction costs, revenues, developmental timescales, levels of section 106 payments and it incorporated proposed values paid for affordable housing. The results are presented using a traffic light system and show that that in strong market conditions the Council’s proposed 15 dwelling threshold/30 affordable housing and 6 dwelling threshold/30% affordable housing targets could be achieved... “The council considers that in strong market conditions the affordable housing policy is achievable. It is clear from the economic viability evidence, however, that a degree of flexibility is required within the policy to accommodate different market conditions. As these conditions are continually changing the Council does not consider that it is possible or appropriate to have varying thresholds and affordable housing proportions. Other parts of the evidence base, such as affordable housing need, indicate that the proportions should be higher than 30%, for example. However, given the need to reflect historic rates of affordable housing provision and the results of the economic viability appraisal, Policy CS6 criterion (b) should be amended such that “at least” is deleted from the start of the second sentence....Trigger site thresholds are set out in Policy D7 of the submitted Development Policies document. The Council has put a suggested change to bring those thresholds into Policy CS6.”
“He could perhaps have substituted a provision which made it clear that the appropriate percentage should be considered on each application, and that it should be as high as reasonably possible, or he could have decided to adjourn the examination to receive evidence relating to that issue and to obtain a reliable figure.”
“...whether it was open to the inspector, on the evidence before him, to find that policy H4 complied with PPS 3 and was consequently “sound” within the meaning of section 20(5)(b) and the Secretary of State’s guidance.”
“34....Certainly it is first and foremost a matter for the planning inspector to reach a judgement on whether a particular policy complies with a piece of national policy guidance. But it was expressly conceded before us by [counsel for the Borough Council] that policy H4 did not satisfy the requirements of PPS 3 in respect of an economic viability assessment of the 30 per cent proportion of affordable housing. One only has to read para 29 of PPS 3....to see that such an informed assessment of the viability of any such percentage figure is a central feature of the PPS3 policy on affordable housing. It is not peripheral, optional or cosmetic. It is patently a crucial requirement of the policy. The Appellant’s policy H4 did not comply with that and it follows that the inspector erred in finding that H4 complied with PPS 3.”
“3. The Government believes everyone should have the opportunity of a decent home, which they can afford, within a sustainable mixed community. This means providing a wide choice of housing to meet the needs of the whole community in terms of tenures and price ranges. This should include affordable housing, both social rented and intermediate. Affordable housing policy is based around three themes: – providing high quality homes in mixed sustainable communities for those in need; – widening the opportunities for home ownership; – offering greater quality, flexibility and choice to those who rent.”
“6. The increase in house prices relative to incomes in recent years has been marked. At the start of this decade there were areas where house prices were very high, but this was largely confined to London, the South East and a few regional hot spots. By 2005, the position had changed significantly: there are now many areas in all regions where house prices are very high and where as a consequence first time buyers are finding it very difficult to buy a home in the market. This position is particularly marked in rural districts and smaller settlements. 7. This has several consequences: – There are now far more areas where local authorities need, through the planning system, to be thinking about provision of intermediate market housing; – High house prices mean that there will be need for more social rented housing, particularly family sized housing; but – This also brings opportunities. Where housing commands much higher prices there is greater scope for securing affordable housing through developer contributions or “planning obligations”
“8. The Government has backed this up with increases in financial provision and has developed a number of grant funded products (including HomeBuy – see Annex D) that aim to meet need in the intermediate market alongside traditional social rented housing, but it cannot subsidise every household currently priced out of the market.”
“9. Increasingly the market will be able to deliver housing aimed at first time buyers: the Shared Equity Task Force will report shortly on the scope for this, now and in the medium term future. There has been much innovation from both the financial community and developers. But there is also scope for achieving development without grant, by effective use of developer contributions through planning obligations (sometimes known as section 106 agreements). Many local authorities are meeting this challenge well. But research suggests that performance is very varied. Others may be missing opportunities to deliver more by not exploring the options available to them. The Government strongly encourages the bestpossible use of planning obligations and other tools to improve delivery, and would like to see all local authorities meet the standards of the best performers. 10. Effective use of planning obligations to deliver affordable housing requires good negotiation skills, ambitious but realistic affordable housing targets and thresholds given site viability, funding ‘cascade’ agreements in case grant is not provided, and use of an agreement that secures standards.”
“It is important to acknowledge, however, that the returns sought by different developers and how they secure this through the whole development process will vary. Developers will take into account a range of factors relating to the risk profile of the scheme, such as scheme size, time of delivery, location and other market factors, in determining what is an acceptable rate of return. As noted, developers may secure their return through a composite process of land assembly, securing permission for development, and the actual development process; and the target rates of return may differ as market conditions change. Such complexities cannot be modelled in a strategic study such as this; this is something which WMDC need to be aware of when analysing the longevity of the proposed strategy.”
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact were resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasons must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inferences will not readily be drawn. The reasons need refer only to the main issues in the dispute, not every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
“A number of consultees were invited by the Council to comment on the SHMA in June/July 2007. In response changes were made to the draft report. In addition a workshop was held in September 2008 and 70 invitations were sent out to key stakeholders. The session included a presentation on the SHMA methodology and key findings. This was followed by a workshop session to discuss the approach set out and whether participants agreed with the key findings. In addition, consultees were asked to provide comments on the thresholds for delivering affordable housing; with the majority of respondents agreeing that a differential approach to sites in urban and rural areas is appropriate.”
“I am aware that at the time of drafting the submission Policies and justification texts only raw data on household aspirations was available rather than the full published Housing Market Demand Study 2008. In my opinion, the lack of transparency of some of the original data upon which the assumptions are based is unfortunate and in breach of the justification test requirements. But I am satisfied that this has been rectified and that, albeit retrospectively, gaps in the evidence base and the weakness of public engagement in the early stages of the SHMA production have been properly addressed and rectified.”